As the Trans-Pacific Partnership or “TPP” moves closer to becoming a reality , leaked documents of the international trade agreement published by WikiLeaks have sparked concerns that the treaty’s re-envisioning of intellectual property rights could prove detrimental to citizens of signatory nations. The latest version of TPP’s intellectual property chapter, hosted on WikiLeaks servers,[1] details a series of sweeping modifications to the international status quo in regards to copyrights as well as to the civil and criminal enforcement thereof, in addition to traditional areas of intellectual property law such as patents and trademarks. Civil rights groups such as the Electronic Frontier Foundation have been harsh in their criticism of the IP chapter and the TPP in general for its lack of transparency, extension of copyright terms, and stiff legal penalties for violations.

International Copyright Law – TPP & TRIPS

TPP has been long in the making, with countries including Australia, Canada, Chile, Japan, Mexico, the United States and a half-dozen others building on a decade-old economic partnership between four pacific nations referred to as the “P4.” In 2008, the United States opened negotiations with the P4 for an expansion of the agreement, beginning a series of negotiations that resulted in the comprehensive and highly secretive trade package being debated in parliaments across the Pacific today.

Compared to the TRIPS agreement, TPP’s international IP law predecessor, the new agreement is far narrower in terms of the number of countries affected while its IP protections are greater in scope. The Trade-Related Aspects of Intellectual Property Rights, colloquially termed TRIPS, was passed in 1994 and is administered by the World Trade Organization. Through TRIPS, the WTO requires all 158 of its members to provide a baseline set of intellectual property rights and establish mechanisms for enforcing the rights domestically. Notably, the TRIPS agreement contains only one article referring to criminal procedures for violation of IP rights, which was criticized by rights holders at the time for being both difficult to enforce as a broad standard as well as being discretionary in nature.

TPP’s Copyright Protection Expansion

Learning from the shortcomings of TRIPS, the TPP negotiators took a more expansive view of intellectual property rights and the legal mechanisms available to enforce them. Copyright terms will be extended from 50 years after the life of the author established in TRIPS to 70 years for individuals, and either 95 or 120 years after creation for corporate owned works. Signatory nations will be required to pass statutes banning the circumvention of Digital Rights Management software, commonly used to prevent unauthorized access or use of digital goods, and will have the option to treat the circumvention of such as a separate offense in addition to any copyright violation. The treaty reiterates a three-step test for fair use of copyrighted material that was included in the TRIPS agreement but narrowly construed by a WTO arbitration panel in 2000, an interpretation which will not be binding on the TPP. The agreement will also require all members to enforce the equivalent of the Digital Millennium Copyright Act in regards to its safe harbor provision for internet service providers. This will remove the need for judicial notice before takedown requests for copyrighted materials are honored, as is currently the law in some signatory nations including Chile.

Enforcement Mechanisms for IP Violations

TPP also establishes a more robust system of civil and criminal sanctions than TRIPS in its enforcement of intellectual property provisions. On the civil side, under article H.4(2) of the Intellectual Property Chapter, infringers will have to pay court costs as part of their damages should they lose in court. Furthermore, H.4(4) states that in calculating damages to rights holders, juries must consider “any legitimate measure of value” which encompasses lost profits, the value of the infringed materials, and the recommended retail price.[2] Article H.7 adds the option to also grant punitive damages for infringement.[3] Additionally prior language stating a “three strikes” piracy policy resulting in termination of Internet services would not be included has been removed, opening the door for its inclusion at a later date.

In regards to criminal procedure, the treaty does restrict the scope of criminal offenses to copyright infringement at a commercial scale where the infringement “impact(s) on the right holder’s ability to exploit the work in the market.”[4] However, unlike TRIPS where criminal sanctions are optional, TPP mandates the enactment of statutes providing for criminal sanctions “where any person is found to have engaged willfully and for the purposes commercial advantage or financial gain.”[5] Thus in a dramatic departure from current copyright law, if individual or corporate rights holders successfully argue in court that an infringer impacted their ability to exploit their work in the market, criminal charges could be filed regardless if the infringer actually experienced financial gain.

The Path Forward for TPP

Now that TPP has been finalized, the next year will be witness to a host of parliamentary debates and ultimately votes across the dozen countries seeking to enact it. Already a public relations campaign has begun in the United States as President Obama publishes op-eds with his byline in local papers across the country espousing the benefits of the trade deal, while Japan’s ambassador toured small businesses in American cities that he said will do increased business with Pacific Rim nations. Opponents have also mobilized internationally with criticisms of the freshly leaked intellectual property chapter, from Canadian law professors against the expansion of copyright protections to preeminent Indian trade scholars who disfavor the inclusion of patent language that would target India’s booming generic drug industry.

The agreement has even reached the presidential campaign as a political issue. Candidates such as former Secretary of State Hillary Clinton, Senator Bernie Sanders, and Donald Trump have come out against the deal while former Governor Jeb Bush and Senator Marco Rubio have expressed support. With fast-track authority for the deal authorized, TPP and its intellectual property provisions must be voted on as-is in Congress, with no alterations. If it passes, it will no doubt reshape the global economy and copyright law in the coming decades.

The Electronic Frontier Foundation provides analysis on the recent Capitol Records v. MP3Tunes opinion issued by the New York Southern District. The court held that file de-duplication on cloud-based music services falls within the safe harbor provisions of the DMCA. The decision will lead to reduced costs for online music locker service providers.

]]>http://stlr.org/2011/09/06/stlr-link-roundup-september-6-2011/feed/11447Amazon Kindle and Sony Reader Locked Up: Why Your Books Are No Longer Yourshttp://stlr.org/2008/03/21/amazon-kindle-and-sony-reader-locked-up-why-your-books-are-no-longer-yours/
http://stlr.org/2008/03/21/amazon-kindle-and-sony-reader-locked-up-why-your-books-are-no-longer-yours/#commentsFri, 21 Mar 2008 16:16:56 +0000http://www.stlr.org/blog/?p=87Continue Reading →]]>Many users are unhappy that e-book readers, such as the Sony Reader and the Amazon Kindle, restrict the sharing, borrowing and transferring of e-books. While some argue that the “first sale” doctrine should allow users to transfer an e-book in the same manner as a hard-copy book, these contentious restrictions may be valid under current law.

The Sony Reader and the Amazon Kindle

The Sony Reader and the Amazon Kindle are portable media devices designed to carry and display e-books and other electronic documents. Kindle has a mobile broadband function that allows users to browse online content and download e-books while on the go. Alternatively, the Sony Reader requires users to download and manage their library of e-books via a home computer.

The contentious characteristic of both products is that they bar users from sharing their e-books with other users. For example, Kindle’s license agreement grants a “non-exclusive right to keep a permanent copy…solely for your personal, non-commercial use.” Consequently, Kindle users may “not sell, rent, lease, distribute, broadcast, sublicense or otherwise assign any rights to…any third party.” The Sony Reader has similarly restrictive language in its license, but does allow users to copy e-books to several other Readers as long as they are registered to the same account.

The First Sale Doctrine

Some users have argued that these license restrictions violate the “first sale” doctrine. Under the Copyright Act, the first sale doctrine allows the owner of a particular copy of a work to sell, lease or rent that copy to anyone they want at any price they choose. These rights only apply, however, to the particular copy that was purchased; any unauthorized reproduction or copying of that work constitutes copyright infringement. For instance, you can’t give away photocopies of Harry Potter and the Deathly Hallows, but you can auction your paperback on eBay when you’re finished with it.

When it comes to digital works, however, two complications arise: first, consumers might only hold a license to the content, rather than all of the rights that come from a sale; second, without a traditional physical container for each purchased work, consumers may not practically be able to sell their “particular copy” at all.

License vs. Sale

The first sale doctrine only applies to the “owner” of a copy of a work, so end users who acquire content by license do not enjoy the right to resell their copies. Whether a transaction is a license or a sale is a factual question determined by courts—even if a publisher calls it a license, if the transaction actually looks more like a sale, users will retain their right to resell the copy. However, as more commercial transactions involve the transfer of digital content—particularly commercial software—courts have struggled to consistently make the distinction between license and sale. Software is increasingly transferred with highly restrictive licensing terms, but federal case law has not clearly determined whether these types of transfers are licenses or true sales.

Kindle and the Sony Reader are following this licensing trend and creating restrictive licenses that users must agree to upon using the product. If these agreements are found to be enforceable licenses, they could serve as the legal authority to limit users from selling or otherwise transferring the e-books they download.

Amazon vs. Sony

Both license schemes are equally restrictive, but each product limits use in a slightly different manner. Amazon Kindle’s use license expressly limits the extent and use of both the device and the digital media. The Sony Reader’s restrictions operate in two steps: a license to use the device and a second license to use the e-book library software (created by Sony). In both devices, users are not allowed to circumvent or alter the pre-installed software on the device.

For digital media, Kindle’s agreement allows users one permanent copy. The Reader, on the other hand, allows one user to posses multiple copies as long as they are all registered to that user. Both regimes are equally restrictive on the distribution, copying, and sharing of purchased e-books (to other users).

The reason for the differences in these restrictions is a result of their technical characteristics. Amazon’s wireless store requires the terms to be agreed on initially, while the Sony Reader’s reliance on iTunes-like software allows a separate use agreement. In effect, both agreements accomplish the same level of restriction, but you have a little more leeway with the number of copies with the Sony Reader.

Hard Copies vs. Digital Copies

Another possible complication stems from the inherent difference between transferring an e-book and transferring a hard-copy book. The transfer of a hard-copy book is just that; the physical transfer of one copy. The transfer of an e-book, however, requires the digital recreation or copying of that e-book. Because the first sale doctrine allows transfers of only your particular copy, and not reproductions or recreations, a digital transfer of an e-book is probably impermissible. Thus, users of Kindle and the Sony Reader can only legally transmit works by selling the physical media on which they are stored—be that the e-book readers themselves or the users’ hard drives.

While the restrictions on e-books may initially seem inconsistent with the rights granted for hard-copy books, these differences are the consequence of new digital products outgrowing traditional copyright doctrines. Such issues are currently being examined by legal scholars and industry insiders, but only time will tell whether this degree of control over digital media is acceptable to society.

]]>http://stlr.org/2008/03/21/amazon-kindle-and-sony-reader-locked-up-why-your-books-are-no-longer-yours/feed/287Digital Rights Management: Amazon Versus iTuneshttp://stlr.org/2007/10/16/digital-rights-management-amazon-versus-itunes/
http://stlr.org/2007/10/16/digital-rights-management-amazon-versus-itunes/#respondTue, 16 Oct 2007 16:54:20 +0000http://www.stlr.org/blog/?p=105Continue Reading →]]>Everyone has heard of Amazon and iTunes. Chances are, you have also heard about the controversies surrounding file sharing and MP3s. But another three-letter acronym that is controversial these days is DRM – Digital Rights Management.

With much fanfare, Amazon entered into the online music distribution business on September 25, 2007. Its major selling points? DRM-free music that is cheaper than Amazon’s biggest online competitor – iTunes. What is DRM, and why does it even exist? How else is Amazon’s new store different from iTunes? And what will the competition likely do to the music industry?

A Brief History of File Sharing

To understand why DRM exists, a bit of history is in order. Precursors of modern day file sharers have been quietly sharing digital files for decades – first through bulletin board systems and later through Internet relay chat. Then Napster debuted in 1999 and blew the doors off of a previously low-key file sharing scene. Utilizing a clean graphical interface as well as a centralized server, Napster brought file sharing to the masses.

The Rise of iTunes

Napster left a void in the online music distribution market, and other music software as well as large corporations rushed to fill it. Apple, leveraging the iPod’s popularity, debuted its iTunes Online Music Store in April of 2003. Using the iTunes software, one can browse the catalog and buy singles or whole albums with only one click of the mouse. The songs are then downloaded to a computer and can be uploaded to an iPod.

Digital Rights Management

The RIAA, however, had not forgotten what file sharing programs like Napster can do. It feared that copies of music purchased on iTunes would still be illegally distributed. Thus, the RIAA continued to pursue a two-fold strategy of continued legal action against file sharers as well as development of technologies to discourage and prevent file sharing. Collectively, these technologies are called Digital Rights Management, or DRM. While the name ostensibly implies increased freedom on the part of purchasers of products incorporating DRM, in practice, DRM has served to restrict consumer usage of digital music in order to prevent or discourage file sharing.

For example, Fairplay is the form of DRM that can be found on the majority of music sold through iTunes. Fairplay imposes several restrictions on usage: it allows a track to be played on up to five computers simultaneously and permits a particular music playlist containing a protected track to be copied onto a CD up to seven times. Most significantly, Fairplay-protected tracks cannot be copied onto the vast majority of rival digital audio players including models produced by Microsoft and Creative. Other popular DRM methods include audio track watermarking or copy protection software bundled with audio CDs.

Amazon Music Store Versus iTunes Music Store

The new Amazon music store is different from iTunes in three important respects. First, the two stores are structured differently. Second, Amazon’s songs are not protected by DRM. The final major difference is a difference of price.

In terms of structure, Amazon demands only a web browser – unlike Apple’s music shop, which requires the iTunes software. Buying a track on Amazon, however, is more complicated – a three-step process that requires selecting the song, confirming a credit card and then confirming a “shipping address,” even though the song is delivered online. Although Amazon permits one-click purchases of an entire album, there is no equivalent to another convenient Apple feature: check boxes next to individual tracks. Amazon’s downloader, however, downloads faster than any similar utility available, and its songs are generally higher in quality than its competitors’. Better yet, Amazon will automatically add newly purchased songs to one’s iTunes or Windows Media Player library – which means they are available to your player immediately.

The second major difference is that all of Amazon’s songs are DRM-free, so they can be uploaded onto a device of a user’s choosing, including an iPod. Songs from iTunes, on the other hand, are protected by Apple’s DRM so that they can only be played on Apple devices. DRM-free songs can also be purchased on iTunes, but the price for such songs is higher than that of protected songs. While this difference in versatility may make Amazon songs seem like the better option, there is a trade-off. Because Amazon does not protect the songs it sells through DRM, many record companies are hesitant to sell their music through the Amazon store. Only two of the four major labels, EMI and Universal Music, are participating. The other two, Sony BMG and Warner, appear reluctant to offer music without DRM protection. As a result, Amazon has a much narrower song selection than iTunes.

It should be noted, however, that while Amazon’s songs are DRM-free, customers are still limited in how they can use the music. Instead of using software for protection, the restrictions are in the user agreement, a contract you automatically agree to when you buy the songs. Amazon’s agreement states that you “agree that you will not redistribute, transmit, assign, sell, broadcast, rent, share, lend, modify, adapt, edit, sub-license or otherwise transfer or use the Digital Content.” This is clearly not as protective or easily enforceable as DRM methods of protection.

The final major difference between Amazon and iTunes is price. Amazon is currently selling its DRM-free songs at $0.89 each; iTunes, on the other hand, sells DRM-protected songs at $0.99 each and DRM-free songs at $1.29. The $0.40 difference gives Amazon a competitive advantage that should not be underestimated.

How Will This Affect the Industry?

Once Apple announced in April of this year that it would make DRM-free tracks available through the iTunes Store, it seemed likely that other DRM-free stores would open. The logic is that if you are going to put your music out there in a way that can be infinitely duplicated, you might as well offer near-infinite ways of collecting money for it. So, the announcement of the Amazon store is not much of a surprise (particularly since rumors had been circulating since at least April of 2007).

Many reviewers have commented that the Amazon store, with its low-cost, DRM-free, higher-quality tracks, presents a compelling alternative to the iTunes Store. Moreover, Amazon already has many customers’ credit cards stored on its servers, and owns a powerful recommendation engine technology, which will recommend tracks that you might like based on what you have downloaded in the past. The only major drawback, as previously discussed, is that Amazon offers only about one-third of the tracks available on iTunes.

There seems little doubt that Amazon is a serious competitor to iTunes, and it seems that, as always, customers will ultimately benefit from this competition. If Amazon sells billions of MP3s, the two major labels that have so far resisted selling DRM-free tracks will likely feel pressure to join Amazon. But Apple will benefit from a successful Amazon store, too. The more digital tracks available in the marketplace, the greater the need for digital music players like iPods and iPhones, where Apple makes its real profit; neither device, nor the iTunes jukebox software itself, has faced a serious competitor.1

Update October 18, 2007:

By Marc Friedenberg From the Columbia Science and Technology Law Review: On October 16, Apple announced that it has lowered the price of its iTunes Plus songs, which are not DRM-protected, from $1.29 to $0.99. In addition to songs from the EMI library, tracks from a number of independent record labels are also available as iTunes Plus downloads. Clearly, this move eliminates some of the allure of the Amazon offering; nevertheless, many of Amazon’s songs are still cheaper, costing only $0.89.

The profitability of the iTunes Store has been a subject of some controversy. There seems little doubt, however, that the iPod and iPhone lines are far more profitable.

]]>http://stlr.org/2007/10/16/digital-rights-management-amazon-versus-itunes/feed/0105Microsoft’s war waged with FairUse4WMhttp://stlr.org/2006/11/13/microsofts-war-waged-with-fairuse4wm/
http://stlr.org/2006/11/13/microsofts-war-waged-with-fairuse4wm/#respondMon, 13 Nov 2006 16:09:14 +0000http://www.stlr.org/blog/?p=74Continue Reading →]]>The press and blogosphere have recently been abuzz over programs that remove copyright protections technologies known as Digital Rights Management (DRM) from purchased or rented media files. These DRMs restrict a consumer’s use of the media – morality notwithstanding, they are the only thing preventing you from copying your music or video files onto all of your friends’ computers. DRM-stripping programs remove such restrictions from the file (and typically violate your terms of service agreement, to say the least). In September, Microsoft filed suit against the hacker(s) responsible for one such DRM-stripping program, FairUse4WM, purportedly created by the now notorious Viodentia. Other such programs reportedly target the DRM protections of theiTunes Music Store and AllOfMP3, among others. What will become of Microsoft’s lawsuit? What does this have to do with “fair use” and the Digital Millennium Copyright Act (DMCA)? What follows is a brief overview in two parts. In the first, we’ll discuss current issues surrounding fair use with regard to the DMCA, and in the second we’ll approach Microsoft’s legal actions against Viodentia for FairUse4WM.

What fair use is, and how it works alongside the DMCA

“Fair use” is a doctrine under US copyright law that permits certain acts that might otherwise be considered copyright infringement. Copyright law gives authors the right to exclude others from their work, and can sometimes get in the way of the ultimate goal of copyright, which is to promote progress in art and science. The theory here is that without copyright protections, many artists and authors would be discouraged from distributing their work. The fair use exception allows copyright protections to remain in place while enabling consumers some degree of freedom in their use of purchased media. For example, it was generally understood that ripping CDs for personal use was legal because it fell under the fair use exception. However, fair use was dealt a serious blow with the enactment of the DMCA in 1998 and the widespread use of DRM protections. Indeed, fair use is not a defense to a DMCA claim.

The DMCA specifically prevents someone from “circumvent[ing] a technological measure that effectively controls access to [copyrighted works]” without permission from the copyright owner (17 U.S.C.A. § 1201(a)(1)(A) & (3)(A)). It also prohibits a person from, among other things, making such a tool or offering it to the public (17 U.S.C.A. § 1201(b)(1)). This provision has given content providers the power to take legal action against virtually anyone who tampers with their DRM protections, even those who would have otherwise been protected under the fair use doctrine — often times consumers like you.

A prime example of how courts have used this DMCA provision to strike down a DRM-removing technology involves DeCSS. As you might know, DeCSS removes the DVD content protection, or Content Scrambling System (CSS), essentially enabling anyone with a computer and a little know-how to rip DVDs. In the frequently cited case of Universal City Studios v. Corley 273 F.3d, 429 (2d Cir. 2001), the Second Circuit Court of Appeals affirmed a district court’s ruling that barred Eric Corley — aka Emmanuel Goldstein, publisher of the infamous 2600 hacker quarterly — from making DeCSS available for download on 2600.com, or posting links to other websites offering the program for download. Among other things, the court rejected the idea that DeCSS could be protected under the fair use doctrine, reasoning that fair use is concerned with how one uses a copyrighted work, not how someone obtains the work in the first place. Thus, the court concluded that the right to view a DVD does not create a right to decrypt the DVD.

Because the DMCA doesn’t distinguish between types of media involved or how protections are circumvented, the Corley case will most likely play a role in any future legal battle over DRM-stripping software. So far as FairUse4WM is concerned, the fair use doctrine would appear not give Viodentia (or users or distributors of the program) any protection against alleged DMCA violations, and FairUse4WM could suffer the same defeat in a US court as DeCSS. The European Union has enacted similar legislation to the DMCA, namely the 2001 EU Copyright Directive (EUCD). But Microsoft has admitted that it doesn’t know Viodentia’s location and has recently initiated action with Yahoo and Google to investigate. Legal defeat, however, has not at all magically eliminated the availability of DeCSS on the web. This may give some insight as to how effective current legal relief in the US will be once internet users take hold of a desirable new technology.

Have we seen the end of fair use? Current law still leaves a little wiggle room. While programs specifically designed to circumvent copyright protections have little chance of overcoming the DMCA, manual workarounds may still be legal. For example, most downloadable music services (begrudgingly) allow users to burn audio CDs from the music they buy. Doing so also strips the files of their DRM, but because users have permission to copy to CD, this use is acceptable under the DMCA. Re-ripping the CD back into unprotected audio files for personal use is probably acceptable under fair use or by some other right (the RIAA allows copying of CDs for personal use but not because of fair use). Whether courts would view this multi-step process as DRM “circumvention” under the DMCA has yet to be seen.

So where will the line between fair and illicit use eventually be drawn? The current legal incongruity between manual DRM workarounds and blatant DRM hacks reflects the questionable post-DMCA state of the fair use doctrine. Will this be enough to encourage lawmakers and courts to rethink their position on the DMCA? Only time will tell.

Microsoft takes legal action

On September 22, Microsoft filed a complaint against “John Does 1-10, a/k/a ‘Viodentia’,” alleging that Viodentia created and distributed software, FairUse4WM, that incorporates code from Microsoft’s Windows Media Format SDK v. 9.5. Microsoft argues that Viodentia should therefore be held liable for copyright infringement. Filing an action against a John Doe is somewhat tricky in the American legal system; we have an adversarial legal system, and when you file against a John Doe, you’re suing somebody whose identity you don’t know and who’s therefore not represented in court. One of the first steps, then, when suing a John Doe is to find out just exactly who you’re suing. This is done through a third party discovery motion, which needs to be approved by the court. Accordingly, Microsoft filed a Motion for Leave to Conduct Third Party Discovery on September 26.

In granting the motion for third party discovery to identify Viodentia, Judge John Coughenour set explicit limits on who can be subpoenaed and what can be requested. Judge Coughenour allowed discovery against two named e-mail providers, Yahoo! and Google. Microsoft may only look for information that is reasonably likely to lead them to identify the user of the targeted IP address(es). Judge Coughenour also authorized a limited second level of discovery that works as follows: if Microsoft’s Google and Yahoo! discovery uncovers an IP address relevant to the identification of Viodentia, Microsoft is permitted to issue subpoenas to the ISP that operates or issued that IP address in order to determine the identity of the user.

If Microsoft is unable to procure useful information from Google or Yahoo!, or if they run into a dead end at the ISP level, it will need to find some other means of identifying Viodentia. To expand the scope of its search, Microsoft would need to seek and receive further permission from the court. The present order gives Microsoft only 120 days to discover Viodentia’s identity. Although Microsoft can seek a time extension, if it cannot name an actual person in its suit before Judge Coughenour’s patience wears out, the case will likely be thrown out.

If Microsoft does identify Viodentia, the case can proceed. This would entail service of process and would involve thorny jurisdictional questions if Viodentia does not reside in or have sufficient ties to the US. In that case, even if the infringing acts alleged in the lawsuit occurred in the US, unless Viodentia can be prevailed upon to come to the US and be properly served, the case would likely be dismissed on grounds of forum non conveniens (inconvenient forum).

The critical importance of the subpoena power to Microsoft’s case against Viodentia explains the otherwise-mysterious question of why Microsoft has filed a suit for copyright infringement rather than for circumvention of DRM. The subpoena power is a little-noticed feature that the DMCA added to copyright law. In the old days, ISPs often refused to disclose the identities of their users. Then along came the DMCA’s 17 U.S.C. 512(h)(1), which enables a content owner to subpoena an ISP and demand user identities. This is crucial because ultimately, it is the only way to maintain a lawsuit and force a user like Viodentia to stop. But here’s the problem: 512(h)(1) applies only to copyright violation and not to DRM circumvention. If it were only a matter of hacking WM, Microsoft would not be able to use a subpoena to identify Viodentia. Therefore, Microsoft must claim copyright infringement, whether or not that actually is the case.

In the meantime, Microsoft is issuing cease-and-desist letters to websites hosting FairUse4WM, alleging the same copyright infringement as alleged against Viodentia. It remains to be seen if Microsoft will attempt to advance its copyright argument against these websites by filing suit, or whether it will focus its efforts on Viodentia. Since websites hosting FairUse4WM cannot hide behind the fair use doctrine as noted above, those that are within Microsoft’s legal reach will likely heed Microsoft’s threats rather than be ensnarled in a costly legal battle. However, it is important to note that legal defeat has not magically eliminated the availability of similar DRM-stripping programs like DeCSS on the web. This may give some insight as to how effective current legal relief in the US and abroad will be once internet users take hold of a desirable new technology.

Is all of this still relevant if Microsoft intends to turn its back on PlaysForSure? Absolutely. Zune or no Zune, PlaysForSure is supposed to live on for its current partners. What’s more, Microsoft’s case against Viodentia will likely establish important legal precedent for actions against the creators of other current and future DRM-stripping programs. If you thought Microsoft’s lawyers were scary, wait until you see Apple’s.